It’s hardly surprising that the common law doctrine of ‘Joint Enterprise’ attracts critical commentary. Hard cases, murder cases, do that.
Joint enterprise enables anyone involved in an offence to be prosecuted. Little participation in the venture is needed, although mere presence is not enough. It can be almost anything and a minor role will suffice. A getaway driver, a look out, encouragement or advice. However, even a minor participant will be guilty of the full offence and sentenced accordingly. The Accessories and Abbetors Act 1861 says “whoever shall aid, abet, counsel or procure [an offence] … shall be punished as a principal offender”.
But in a murder case a Judge has no discretion. A life sentence is mandatory. So it’s natural that murder cases provoke debate. It will depend on which side you take. “But he didn’t pull the trigger?”, or “But for him no one would be dead”. It’s stark that a single utterance can result in a life sentence. An example is R v. Derek Bentley. Derek (19 years) was seen on a roof with Chris Craig (16 years). Derek was arrested and remained docile. Chris pointed a gun at the officer, who bravely demanded it. Derek shouted “let him have it, Chris”. But did he mean, pull the trigger or surrender the gun? Derek was hanged on 28.1.53. Being a youth Chris’s life was spared. 45 years on in 1998 the Court of Appeal posthumously quashed Derek’s conviction as being unsafe.
Nowadays joint enterprise still reveals occasional problems, but comparatively few. Although used in thousands of murder cases, the doctrine is also routinely used in all other offences. Drugs, dishonesty, violence and public disorder. But in these the judge has a discretion on sentence. Regard is had to the role of each offender. What each did. Whether minor or major, so the sentence reflects individual participation and culpability. Fairness is ensured by the Sentencing Guidelines and Judicial Training. In the real world, practitioners are rarely troubled.
The doctrine is best seen in the context of our entire criminal system. Burden of proof remaining with the Crown, beyond reasonable doubt, an adversarial system with forensic scrutiny by skilled lawyers and an impartial judge, plus an appeal. Perhaps Judges should be allowed discretion in murder cases too, but until an alternate emerges there are 3 things to be found in the detail. The devil, miscarriages and eventually Justice. Sadly too late for Derek, but probably not past it’s sell by date yet.
Bhatia Best Solicitors
Past President & Chair of Notts Law Society